Seeby v Workcover/Mmi Workers Compensation

4 S 95 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") provides as follows:

"(1) A party (other than the relevant compensating authority) is entitled, subject to this Part and to limits prescribed by regulation, to an award against the relevant compensating authority for the party's reasonable costs of:-

(a) the initial reconsideration of a disputed decision; and

(b) any subsequent proceedings for resolution of the dispute under this Part (but not proceedings by way of an appeal or case stated to a Full Bench of the Tribunal or the Supreme Court).

(a) the cost of representation by a legal practitioner or an officer or employee of an industrial association; and

(b) costs of a kind authorised by the regulations that were reasonably incurred.

(3) If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the Tribunal may:-

(a) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(b) reduce the amount of the award to which the party would otherwise have been entitled.

(4) An award of costs to cover professional advice or assistance may, if the Tribunal considers appropriate, be made in favour of the person who provided the professional advice or assistance.

(5) An award of legal costs cannot exceed 85% of the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court."

5 The Corporation opposed the worker's application for costs submitting that the worker had acted unreasonably within the terms of s 95(3) in pursuing his claim.

6 The learned Deputy President reviewed his findings at first instance, one of which was that the worker had "concocted evidence" and had "manufactured evidence" both as to the circumstances of his alleged serious work injury and as to the severity of his resulting condition. The learned Deputy President went on to find that the worker's intention "was to deceive the Tribunal in the hope that this would bring him compensation that he was not entitled to". He then satisfied himself that in so misleading the Tribunal the worker had acted unreasonably within the terms of s 95(3) of the Act. In exercising his discretion the learned Deputy President rejected the worker's application for costs, and whilst noting that notwithstanding that the worker's level of conduct was at the upper end of the scale of unreasonableness, he did not make an award of costs against the worker (such an order was not sought by the Corporation).

7 On the appeal Mr Kernot, counsel for the worker, did not challenge the findings of the learned Deputy President that the worker had concocted his evidence and conceded that on that finding it was open to the learned Deputy President to conclude that the worker had acted unreasonably.

8 Mr Kernot relied upon the intention of s 95 of the Act which was generally that an order of costs would not be made against a worker; in so doing he acknowledged the disqualifying factors contained in s 95(3). However, he argued that only in exceptional circumstances should the Tribunal be satisfied that the provisos in (3) are made out. His complaint was that the test for unreasonableness required more than existed in this case and that as a result the exercise of discretion miscarried.

9 In putting that submission, Mr Kernot relied upon House v The King [1936] HCA 40; [1936] 55 CLR 499 but had difficulty identifying any wrong principle upon which it could be said that the learned Deputy President acted.

10 Whether a worker has acted unreasonably in bringing or in the conduct of proceedings requires a case by case consideration. However, for a worker to engage in deliberate misleading on significant evidence going to the resolution of the issues would rarely avoid such a conclusion. That has been an approach consistently taken in this Tribunal, its predecessors and in the Industrial Court in its workers compensation jurisdiction. See South Australian Meat Corporation v Farbotka (1980) 47 SAIR Pt 2 699; South Australian Meat Corporation v Esposito (1981) 48 SAIR Pt 2 698; Disotto v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (St Basil's Home for the Aged) J.D.92/1999; Elvey v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Western Personnel Services Pty Ltd) [2000] SAWCT 60; Chapman v WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Ltd (ASM Australia Pty Ltd) [2000] SAWCT 126. To the degree some indication of the approach may be of assistance, these authorities indicate that mendacious testimony by an applicant carries with it a very high risk of forfeit under subsection (3).

11 The learned Deputy President's decision was consistent with that approach.

12 There is no question of law as is required by s 86(1) of the Act.